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Sunday, February 8, 2015

Alabama's Supreme Court Chief Justice Roy Moore is on the verge of proving that those who do not learn from history are doomed to repeat it.

On a personal level, Justice Moore has already been removed from Alabama's high court once for openly defying federal court orders. He didn't want to give up his view that his god's law was supreme, even after a federal court told him to. But the ethics boards that govern judges weren't moved because they actually follow the laws of this land. And in this land, when a federal court orders a state court to do something and bases that order in the United States Constitution, the state courts have to follow that order. It's not a matter of choice, it's not open for debate. A federal court order is not a suggestion.

Evidently, Justice Moore hasn't learned that lesson because he got himself voted back to the role of Chief Justice of the Alabama Supreme Court and has now "ordered" all the probate judges throughout the state not to issue same-sex marriage licenses tomorrow, in defiance of a federal court ruling. Justice Moore doesn't think that a federal court has any authority to declare the state's same-sex marriage ban to be unconstitutional, so he is telling state judges they can't follow that ruling. He still doesn't seem to understand that the Supremacy Clause of the US Constitution exists and applies to Alabama laws such that when an Alabama law (the same-sex marriage ban) conflicts with federal law (here the Equal Protection Clause of the 14th Amendment), the federal law is supreme. Neither Roy Moore nor any other Alabama state court judge gets to ignore a federal court order. This round will not end any differently for Justice Moore than the first round did.

But there's a greater lesson from history that Justice Moore doesn't seem to have learned from, either. Alabama (and a whole bunch of other states) picked a fight with the federal government a century and a half ago. When you really think about it, what Alabama was fighting against back then boils down to the same stupid crap Justice Moore is fighting against now. I'll assume Justice Moore is one of these history revisionists who will wax poetic for hours on end about how the Civil War (or the war of northern aggression?) was all about state's rights, the nature of our federalist system, yada, yada, yada. I'd guess that he would be the type who would never, ever, ever admit that what it really came down to was slavery. No matter how anyone tries to spin it, though, slavery was absolutely the thing at the center of the fight. Alabama and its sister states of the confederacy wanted to maintain the right to own and keep slaves, to treat a class of people as something less than full citizens (or even citizens at all) deserving of all human and civil rights. You can talk about how that conflict manifested in various ways, but all roads lead back to this. Sure it was about states' rights: the states' right to allow slavery.

So here we are 150+ years ago, and this justice in Alabama once again, in open defiance of federal supremacy, is asserting Alabama's right to treat some people as less than equal, less than fully deserving of recognition, just less. Because that's really what this same-sex marriage fight boils down to. The Justice Moores of the world don't want to be told that they have to accept these families. They don't want to have to recognize couples and families that they think aren't worthy of recognition. The Justice Moores of the world are clinging to their old ways, not open to change. They definitely don't want to have to confront that they might have been wrong in those old ways. The states have the right to discriminate. (Never mind that the 14th Amendment was written in direct response to the Civil War.)

Well, Alabama was wrong about slavery and they're wrong about discriminating against gays and lesbians. Just like Justice Moore was wrong to defy federal court orders years ago as he is to "order" state judges to defy them now. Of course, it's no surprise that people want to pretend that the Civil War was about something more principled than slavery because everyone today recognizes how indefensible slavery is. I similarly hope 150 years from now, people will have as hard a time justifying this anti-gay bigotry.

I feel pretty confident in saying that the only way history will repeat here is that Justice Moore will once again get into trouble for not following the laws of the land, the laws he's sworn to uphold. I certainly don't think one lone once-removed judge is likely to spark another civil war. Instead, I'm going to hold out hope that the next wave of Alabama residents, and possible judges, will learn that defying federal courts in order to maintain a social order that oppresses unpopular minorities is a bad choice to make.